Royal Commission into Misconduct in the Banking, Financial Services and Superannuation Industry

For Commonwealth Bank of Australia (Aussie Home Loans), briefed by Clayton Utz (from February 2018), in hearings into Consumer Lending and the conduct of fraudulent mortgage brokers and compliance with the responsible lending obligations in Ch 3 of the National Consumer Credit Protection Act 2009 (Cth).

>> Closing Submissions for Aussie Home Loans

>> Interim Report released 28 September 2018

The Royal Commissioner, former High Court of Australia Justice, the Hon. Kenneth Hayne AC QC, is due to deliver his Final Report in February 2019.

Royal Commission into Misconduct in the Banking, Financial Services and Superannuation Industry

Registered Organisations Commissioner v Communications, Electrical and Plumbing Union of Australia (2018) FCA

For the Registered Organisations Commissioner, the Commonwealth workplace relations regulator, in civil penalty proceedings against the Communications, Electrical and Plumbing Union of Australia for contraventions of s 233(2) and s 230(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) re notification of changes to office holders.

Unsuccessful mediations in July and August 2018. Following a case management conference on 25 September 2018, the matter returns to Court on 18 December 2018 to be fixed for hearing.

ACCC v Husqvarna Australia (franchise arrangements)

For Husqvarna Australia, an outdoor power products subsidiary of Swedish manufacturer Husqvarna Group, assisting it obtain a speedy and satisfactory resolution of an Australian Competition and Consumer Commission investigation (instructed by Holman Webb).

>> On 29 August 2018, the ACCC accepted Husqvarna's Court Enforceable Undertaking noting the ACCC’s concerns Husqvarna’s “dealership agreements” may have contravened provisions of the Franchising Code of Conduct, and consequently s 51ACB of the Competition and Consumer Act 2010 (Cth), and made misleading representations in breach of ss 18 and 29(1)(m) of the Australian Consumer Law. Husqvarna cooperated with the ACCC’s investigation and has rewritten its dealership agreements to comply with the Code and the CCA. It has also undertaken not to enforce the terms in its existing agreements which the ACCC considered were likely to be unfair contract terms.

Inquiry into Water Compliance and Enforcement in NSW

For WaterNSW (NSW's bulk water supplier and statutory licensing authority under the Water NSW Act 2014 (NSW) and the Water Management Act 2010 (NSW)), instructed by Norton Rose Fulbright.

>> On 8 March 2018, the Ombudsman tabled a Special Report in the NSW Parliament in relation to a related investigation into WaterNSW's inadvertent provision of incorrect statistical information to the Ombudsman as to the enforcement actions that had been taken by or on behalf of WaterNSW.

>> On 17 August 2018, the Ombudsman tabled a further Special Report in the NSW Parliament of an investigation into the administration of water compliance and enforcement in NSW.

ASIC investigation into remuneration arrangements & SMSF advice

For a Queensland client in ongoing ASIC investigation and potential enforcement action re suspected contraventions of the conflicted remuneration prohibitions in Division 4 of Part 7.7A of the Corporations Act and financial advice concerning establishment of self-managed superannuation funds (current matter).

>> On 28 June 2018, ASIC released two related reports: 

Canberra Raiders Sports Club Ltd v ACT Gambling & Racing Commission (2018) ACTSC

For Canberra Raiders Sports Club Ltd against ACT Gambling & Racing Commission in proceedings in the Supreme Court of the ACT and merits review proceedings in the ACT Civil and Administrative Tribunal in challenge to imposition of financial penalty & additional licence conditions under the Gaming Machine Act 2004 (ACT).

>> On 14 June 2018, the disciplinary action was successfully set aside and substituted with a reprimand.

Charitable Fundraising by RSL LifeCare

For RSL LifeCare Limited, a veterans and aged care charity and subsidiary of the Returned Services League of Australia (NSW Branch), instructed by PWC and Clayton Utz, in 10 weeks of hearings held between August and December 2017, into alleged misuse of charitable funds and breaches of the Charitable Fundraising Act 1991 (NSW) by the Returned Services League of NSW, its related entities, directors and officers.

>> Written Closing Submissions for RSL LifeCare

>> Oral Closing Address for RSL LifeCare

>> On 31 January 2018, the Public Inquirer, former Supreme Court of NSW Chief Judge in Equity, the Hon. Patrica Bergin SC, delivered her Report to the NSW Parliament.

>> On 16 May 2018, a related investigation by the Australian Charities and Not-for-profits Commission into the Returned Services League of NSW and RSL LifeCare in relation to breaches of the Governance Standards under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) was resolved, with the ACNC accepting Enforceable Undertakings from the RSL charities.

Re Simpson's Trust (2018) QSC

Application by the trustee of testamentary trust for judicial advice & directions from the Supreme Court of Queensland, appeared for the income beneficiary, a Victorian resident, instructed by Bradley Allen Love, Canberra.

Question concerned whether fully franked dividends should be receipted as income or capital, or apportioned, where dividend partly reflected sale of international business line, and whether Hill v Permanent Trustee Co of New South Wales [1930] AC 720 remains good law in light of Sinclair v Lee [1993] Ch 497 and Orr v Wendt & Ors [2005] WASCA 199.

>> On 22 March 2018, the matter settled at final hearing before Crow J, following cross-examination of the parties' expert accountants, approving orders apportioning the payments 60%:40% between capital and income.

Greek Atlas League Inc (2018) NSWSC

For Greek Atlas League Inc, a Greek community association, in Supreme Court of New South Wales proceedings concerning the validity of elections for the Administrative Council.

>> On 21 February 2018, at final hearing before Robb J, orders were made as to the make-up of the Council and requiring the delivery up of association documents by former officers.

Independent Commission Against Corruption - Operation Credo (Public/Private Partnership Proposal for Water Infrastructure)

For Senator the Hon. Arthur Sinodinos AO, in relation to his former role as Chairman of Australian Water Holdings, instructed by Arnold Bloch Leibler, from initial hearings in January 2014, and in all subsequent hearings and related matters.

>> On 3 August 2017, the final report of Commissioner the Hon. Megan Latham, a judge of the Supreme Court of New South Wales, was finally made public and was tabled in the NSW Parliament; no adverse findings were made against Senator Sinodinos: Independent Commission Against Corruption - Operation Credo Report.

ASIC investigation into suspected insider trading

For the executive director of an ASX listed entity in ASIC investigation into suspected insider trading in the listed entity’s shares contrary to Division 3 of Pt 7.10 of the Corporations Act and potential continuous disclosure breaches (2016-2017).

>> On 17 February 2017, a "no action" letter was successfully obtained from ASIC.

 

Mews Scheme Winding Up (2008-2016) FCA (Vic)

For Mr Peter Warne (Chair, Macquarie Group), in his capacity as the ASIC appointed investor representative, instructed by Arnold Bloch Leibler, Melbourne, in long-running winding up proceedings of an unregistered managed investment scheme pursuant to s 601EE of the Corporations Act 2001 (Cth) in the Federal Court’s Victorian Registry at first instance and on appeal, between 2008 and November 2016.

ASIC v GDK Financial Solutions Pty Ltd (in liq) (2016) FCA (Middleton J) (final orders in chambers)

ASIC v GDK (No 14) [2013] FCA 459 (Gordon J) (approval of further settlement)

ASIC v GDK (No 11) [2012] FCA 1034 (Dodds-Streeton J)

ASIC v GDK (No 8) [2011] FCA 997 (Dodds-Streeton J) (ex parte for approval of compromise)

ZMB Australia Pty Ltd v Warne [2011] FCAFC 65 (appeal) (approval of compromise where settlement fair and reasonable and in the best interests of the investors represented by respondent)

ZMB Australia Pty Ltd v Warne [2011] FCA 311; (2011) 194 FCR 125 (Ryan J) (appointment as representative on appeal where receivers conflicted)

ASIC v GDK [2010] FCA 710 (Gray J) (trial of priority dispute: question whether deed effective to transfer equitable interests claimed by vendor in relation to land which was an asset of scheme, which vendor claimed to hold in priority to claims of investors in scheme)

ASIC v GDK (No 6) [2010] FCA 1092 (Finkelstein J) (ability of representative to compromise proceedings on behalf of a group)

AVS Property Pty Ltd v McMaster [2010] FCAFC 81; (2010) 79 ACSR 89 (appeal) (conditions for discharge of mortgage on scheme property)

AVS Property Pty Limited v Western Retirement Village Management Ltd (In Liq) [2009] FCA 512 (Ryan J) (appointment of representative on appeal)

ASIC v GDK (No 4) [2008] FCA 858 (Finkelstein J)

ASIC v GDK Financial Solutions Pty Ltd (in liq) No 3 [2008] FCA 448, (2008) 169 FCR 497, (2008) 248 ALR 766  (Finkelstein J) (appointment as representative)

'Poles & Wires' Privatisation of State Electricity Network Assets

Conducted negotiations with NSW Treasury on behalf of the Trustee of the Energy Industry Superannuation Scheme, resulting in landmark agreement with State of NSW for the future funding of the defined benefit pension schemes as part of the NSW "Poles and Wires" privatisation of the State's electricity network assets pursuant to the Electricity Network Assets (Authorised Transactions) Act 2015 (NSW), instructed direct.

Independent Commission Against Corruption - Operation Spicer (Political Donations in 2011 NSW State Election)

For Senator the Hon. Arthur Sinodinos AO instructed by Arnold Bloch Leibler, in inquiry commencing in January 2014 concerning political donations by prohibited donors and breaches of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) in the 2011 NSW State Election campaign.

>> On 30 August 2016, the final report of Commissioner the Hon. Megan Latham, a judge of the Supreme Court of New South Wales, was delivered to the NSW Parliament; no adverse findings were made against Senator Sinodinos: Independent Commission Against Corruption - Operation Spicer Report.

Special Commission of Inquiry into the Greyhound Racing Industry

For dismissed Chief Executive Officer of industry regulator Greyhound Racing NSW, instructed by Norton Rose Fulbright and Clayton Utz Sydney, in hearings held between September 2015 and February 2016.

On 16 June 2016, the Commissioner, former High Court Justice, Michael McHugh QC, delivered his final report to the NSW Parliament.  The final report was released on 7 July 2016, at which time the NSW Government announced plans to close down the industry, however, those plans were subsequently reversed.

>> Media coverage.

>> Volume 1  Volume 2  Volume 3  Amendments to the report

Australian Senate Inquiry into Foreign Bribery (Leightons/Unaoil)

For a former Leightons Holdings executive, Mr Stephen Sasse, re allegations of foreign bribery involving Leightons offshore arm and Unaoil interests.

>> Media Coverage.

>> On 28 March 2018, the Report of Australian Senate Economics Committee Inquiry into Foreign Bribery was tabled in the Commonwealth Parliament.

Independent Commission Against Corruption - Operation Tunic (Claims Management & Procurement)

For the NSW Mine Subsidence Board (now Subsidence Advisory NSW, an agency of the NSW Department of Finance, Services & Innovation) in inquiry into alleged corrupt conduct in mine subsidence remediation procurement undertaken pursuant to the Mine Subsidence Compensation Act 1961, and whether end-to-end claims management processes lacked satisfactory controls to prevent corruption. 

>> The inquiry commenced in October 2014 before ICAC Commissioner the Hon. Megan Latham, a justice of the Supreme Court of New South Wales. 

>> On 23 March 2016, the Investigation report found that an MSB District Manager along with two contractors engaged by the MSB, had engaged in serious corrupt conduct. ICAC made seven corruption prevention recommendations to reduce the risk of recurrent corrupt conduct in the MSB. The MSB fully accepted the corruption prevention recommendations, and developed an action plan to implement the recommendations.

Royal Commission into Trade Union Governance and Corruption (AWU/John Holland/Thiess Case Study)

For former John Holland executive, Mr Stephen Sasse, in hearings in October 2015 re his negotiations with former Australian Workers Union Secretary the Hon. Bill Shorten MP (now Federal Opposition Leader) with respect to construction of the East Link Project in Victoria.

>> Media Coverage.

>> On 6 January 2016, the Royal Commissioner, former High Court of Australia Justice, the Hon. Dyson Heydon QC, delivered his Final Report (Chapter 10.3: AWU: John Holland/Thiess Case Study) to the Commonwealth Government.

Invigor Group Limited (Executive Termination) (2015) NSWSC

For Invigor Group Ltd, an ASX listed company, instructed by Minter Ellison, Melbourne & Sydney, in hearing of application for injunctive relief by terminated executive directors, involving continuous disclosure issues (Cohen v Invigor Group Ltd (2015) NSWSC, Black J).